Ordinance 3059
CITY OF ALAMEDA ORDINANCE NO. 3059
AMENDING THE ALAMEDA MUNICIPAL CODE BY AMENDING SECTION 1-5.4
(LIABILITY FOR COSTS) OF ARTICLE V (PENALTY PROVISIONS;
ENFORCEMENT) OF CHAPTER I (GENERAL) TO PROVIDE RECIPROCITY IN
PROVISIONS FOR RECOVERY OF ATTORNEYS’ FEES
WHEREAS, the Alameda Municipal Code Section 1-5.4 currently provides for
recovery of attorneys’ fees in the following manner: “Liability for Costs. Any person
against whom such civil action is filed shall be liable for the costs thereof, which shall
include but not be limited to the costs of investigation, court costs, reasonable
attorney fees and costs of monitoring compliance”; and
WHEREAS, California law has changed since Section 1-5.4 was enacted,
such that a California city that provides for recovery of attorneys’ fee must provide for
reciprocal recovery; and
WHEREAS, this change in the law is codified in California Government Code
Section 38773.5(b), which provides: “A city may, by ordinance, provide for the
recovery of attorneys' fees in any action, administrative proceeding, or special
proceeding to abate a nuisance. If the ordinance provides for the recovery of
attorneys' fees, it shall provide for recovery of attorneys' fees by the prevailing party,
rather than limiting recovery of attorneys' fees to the city if it prevails. The ordinance
may limit recovery of attorneys' fees by the prevailing party to those individual actions
or proceedings in which the city elects, at the initiation of that individual action or
proceeding, to seek recovery of its own attorneys' fees. In no action, administrative
proceeding, or special proceeding shall an award of attorneys' fees to a prevailing
party exceed the amount of reasonable attorneys' fees incurred by the city in the
action or proceeding”; and
WHEREAS, California courts have interpreted California Government Code
Section 38773.5(b) such that a city may be denied recovery of attorneys’ fees if the
city’s attorneys’ fee recovery ordinance is not reciprocal, as decided in City of Monte
Sereno v. Padgett, 149 Cal.App.4th 1530 (6th App. Div. 2007); and
WHEREAS, on the basis of the foregoing, the City Council has determined
that it is necessary to bring the Alameda Municipal Code into compliance with state
law, in order to prevent the City from being barred from recovering attorneys’ fees.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of
Alameda that:
Section 1. The Alameda Municipal Code is hereby amended by changing the
current text of Section 1-5.4 (Liability for Costs) of Article V (Penalty Provisions;
Enforcement) of Chapter 1 (General) such that the section shall be titled “Section 1-
5.4 (Liability for Costs and Recovery of Attorneys’ Fees) of Article V (Penalty
Provisions; Enforcement) of Chapter 1 (General)”.
The Alameda Municipal Code is hereby amended by removing the current language:
“Liability for Costs. Any person against whom such civil action is filed shall
be liable for the costs thereof, which shall include but not be limited to the
costs of investigation, court costs, reasonable attorney fees and costs of
monitoring compliance.”
The Alameda Municipal Code is hereby amended by replacing the removed
text with the following:
“Any person or entity against whom such civil action is filed shall be liable
to the City for the costs thereof, including but not limited to costs of
investigation, costs of monitoring compliance and court costs. In any civil
action, administrative proceeding or special proceeding to abate a
nuisance, the prevailing party may recover attorneys’ fees. Recovery of
attorneys’ fees is limited to those individual actions or proceedings in
which the City elects, at the initiation of that individual action or
proceeding, to seek recovery of its own attorneys’ fees. In no action,
administrative proceeding or special proceeding shall an award of
attorneys’ fees to a prevailing party exceed the amount of reasonable
attorneys’ fees incurred by the City in the action or proceeding.”
Section 2. Environmental Compliance.
The Code amendment approved by this Ordinance is not a project for the
purposes of the California Environmental Quality Act (CEQA) under CEQA
Guidelines section 15061(b)(3) as there is no possibility that this action may have a
significant effect on the environment. Accordingly, no CEQA review is required.
Section 3. Severability.
If any provision of this ordinance or the application thereof to any person or
circumstance is held invalid the remainder of the ordinance and the application of
such provision to other persons or circumstances shall not be affected thereby.
Section 4. Effective Date.
This ordinance shall be in full force and effect from and after expiration of thirty
(30) days from the date of its final passage.
* * * * * *
_____________________________
Presiding Officer of the City Council
Attest:
____________________
Lara Weisiger, City Clerk
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by Council of the City of Alameda in regular meeting
assembled on the 7th day of November, 2012, by the following vote to wit:
AYES: Councilmembers Bonta, deHaan, Johnson, Tam and
Mayor Gilmore – 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 8th day of November, 2012.
______________________
Lara Weisiger, City Clerk
City of Alameda